European Patent Office: No patents on conventionally bred varieties

On 14 May 2020, the enlarged board of appeal of the European Patent Office (EPO) has released an opinion that seems to put an end to patents on classically bred plants. This statement finally gives legal clarity in a long-lasting dispute between the Technical Board of the EPO and the European Union about how the existing rules (in particular, rule 28(2)) should be interpreted. Based on the interpretation of the Administrative Council of the EPO, European patents cannot be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals.

IFOAM EU has been supporting this interpretation backed by the 38 contracting states. We have continuously advocated against patents on classic breeds as they hamper innovation in classical breeding, which depends on the exchange of genetic material. In this context, a patent means that the owner has the exclusive right to use and sell a plant variety for 25 years. This is problematic because breeding only works effectively if breeders are free to use seeds from other breeders to develop their own varieties.

To ensure breeders have an incentive to innovate, breeder’s rights have been established. They give the breeder the exclusive right to sell a variety for 25-30 years but still allow other breeders to use the variety to develop their own variety. It is a system that works well in practice and enables breeders to use a broad variety of seeds to develop plants catering to consumers’ expectations and agriculture’s needs in a changing environment.

What is the relevance?
Patents on breeding entered onto the stage when genetically modified organisms (GMOs) did. GMOs were patentable from the start, which is one of the reasons why they are not used in organics. Large corporations made various attempts to file patents on plants, including on traits already present in nature. This has been successful in some cases, such as a red paprika variety (EP2140023). In this case, the patent holder has the exclusive right on resistance to the glasshouse white fly (Bemisia tabaci) – a natural trait in paprika which has not been invented by the company filing the patent.

This leads to a situation in which breeders were more and more limited by patents, resulting in a tangible threat to innovation in classical breeding. National governments, the European Commission and the European Parliament recognise this is a problem and emphasized that it is not the intent of (European) governments to allow these patents. The decision of 14 May marks the moment in which the European Patent Office gave in to this pressure from governments, institutions, breeders, and civil society.

How does it affect the organic sector?
For organic, these developments are good news. They allow breeders to continue working on new varieties that are better adapted to the changing climate and specific conditions of organic agriculture. If the decision is properly implemented, organic breeders will not be hindered by any new patents on classically bred varieties. However, the interpretation has no retroactive effect and will only apply from 2017 onwards. This causes potential legal uncertainties to be clarified regarding those patent applications that have already been filed before rule 28(2) was introduced. IFOAM EU will closely follow this issue.

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